Mutunga v Steel Structures Limited (Cause 1771 of 2017) [2024] KEELRC 697 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Nature of the Claimant's employment
The employment was a term contract of employment; the casual label was applied in ignorance of the statutory definition, and in any event the employment converted to a term contract under section 37 of the Employment Act
The Respondent's pleadings and witness statement did not assert that the Claimant worked intermittently; that assertion emerged only in cross-examination and was dismissed as an afterthought. The Respondent failed to tender records showing when the Claimant worked and when he did not. The court therefore found the relationship to be a term contract, holding alternatively that even casual employment converted under section 37 after continuous work.
Substantive fairness of the termination
The Respondent failed to prove the reasons for termination, and the reason presented (absconding duty) was neither valid nor fair
Sections 43 and 45 of the Employment Act place the burden on the employer to prove valid and fair reasons for termination. The Respondent's pleadings, witness statement and testimony were silent on the specific date of the alleged absconding, and the witness could not even confirm that the Claimant stole the untraced item. The court concluded that the reason for termination was unproved and invalid.
Procedural fairness of the termination
The mandatory procedure under section 41 of the Employment Act was not adhered to at all; the Respondent made no efforts to trace the allegedly absconded employee
Section 41 requires notification of grounds, an opportunity to be heard, and consideration of representations before termination. The Respondent claimed the Claimant had absconded, but there was no evidence of any attempt to trace him or to inform him of intended disciplinary action. Desertion could only ground summary dismissal under section 44(4) if the employer first engaged the statutory procedure.
Entitlement to reliefs
Notice pay of one month, leave compensation of KShs.84,172.20 and compensatory damages of six months' gross salary (KShs.137,424) were awarded; travelling allowance and service pay were refused
Having found a term contract terminable on one month's notice under section 35, the court awarded notice pay for the unissued notice. Leave was a statutory right under section 28 and the Claimant was compensated for five years and three months of earned but unutilized leave. Compensatory relief under section 49(1)(c) was fixed at six months' gross salary considering the circumstances. Travelling allowance failed for want of proof, and service pay was barred by NSSF contributions.
Legal principles established
#- Parties' labels of an employment relationship do not bind the court, which must ascertain the true character of the relationship
- Casual employment converts to a term contract where the employee works continuously for the statutory period contemplated in section 37 of the Employment Act
- An employer who alleges desertion must give evidence of when the alleged absconding occurred; failure to do so means the reason for termination is not proved
- An employer alleging desertion must demonstrate efforts to trace the absent employee and afford him the section 41 hearing before invoking desertion as gross misconduct
- It is not open to an employer to allege that an employee did not apply for leave; ensuring leave enjoyment is a Human Resource function of the employer
Court orders
#- 1.A declaration that the termination of the Claimant's employment was unfair
- 2.One month's salary in lieu of notice, KShs.22,904.00
- 3.Compensation for earned but unutilized leave days, KShs.84,172.20
- 4.Compensation under section 49(1)(c) of the Employment Act of six months' gross pay, KShs.137,424
- 5.Costs of the suit to the Claimant
- 6.Interest at court rates on the awarded sums from the date of judgment until full payment
- Jurisdiction invoked
- Not stated in the judgment as provided; first-instance employment and labour relations claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutunga v Steel Structures Limited (Cause 1771 of 2017) [2024] KEELRC 697 (KLR)", Case Analysis (2024). Cause No 1771 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/697/eng@2024-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.